WWF-Australia and Department of Agriculture, Fisheries and Forestry
[2007] AATA 1046
•7 February 2007
Administrative Appeals Tribunal
INTERLOCUTORY DECISION AND REASONS FOR DECISION
[2007] AATA 1046
ADMINISTRATIVE APPEALS TRIBUNAL )
) N2006/719
GENERAL ADMINISTRATIVE DIVISION ) Re WWF-AUSTRALIA Applicant
And
DEPARTMENT OF AGRICULTURE, FISHERIES AND FORESTRY
Respondent
INTERLOCUTORY DECISION
Tribunal Deputy President Walker Date7 February 2007
PlaceSydney
Decision The application is adjourned generally. Either party, or both parties, have liberty to apply. [SGD]
Professor GD Walker
Deputy President
CATCHWORDS
Freedom of Information Act 1982 ss 27, 27A, 40(1)(d), 41(1), 43(1)(c)(i), 43(1)(c)(ii), 59(3) and 59A(3)
Administrative Appeals Tribunal Act 1975 ss 33, 42D
Re Andrews and Australian Research Council [2007] AATA 1026
Humane Society International Inc v National Parks and Wildlife Service [2000] NSWADT 133
The Company and FCT (1998) 50 Admin Review 37
Re Swiss Aluminium Australia Limited and Commissioner of Taxation (1985) 8 ALD 159
REASONS FOR DECISION
7 February 2007 Professor GD Walker, Deputy President Background
1. The applicant requested access under the Freedom of Information Act 1982 (The FoI Act) to documents containing survey and interview data obtained from primary producers by the Australian Bureau of Agricultural and Resources Economics (ABARE). ABARE is part of the respondent department.
2. The respondent granted the applicant access to some documents, but refused access to others on the ground that they were exempt under ss 40(1)(d), 41(1), 43(1)(c)(i) and 43(1)(c)(ii) (T p21). That decision was affirmed following an internal review (T p59). The applicant has applied to this tribunal for review of that decision (T p3).
3. ABARE conducts two main farm surveys each year as part of its research program. The Australian Agricultural and Grazing Industries Survey (AAGIS) surveys Australian broadacre farmers who provide detailed information about their farm businesses. The Australian Dairy Industry Survey (ADIS) surveys diary farmers who provide information about their dairy businesses. Other surveys are conducted on particular subjects of interest. ABARE has conducted surveys of Australia’s agricultural and dairying industries for 30 years. Participation in the surveys is voluntary.
4. The applicant requested documents including data, from three surveys: the main AAGIS survey undertaken in 2005, a supplementary survey on native vegetation undertaken in conjunction with it, and a separate survey on native vegetation conducted in late 2004.
5. The information requested relates to such matters as farm income, location, size and market value of the surveyed farm, land tenure arrangements, crop areas, production volumes, sales volume and value, fertilizer and irrigation water application volumes, costs, wages, receipts of government assistance, debt levels, value of assets, inventory of plant and machinery and species of native vegetation present on the farm.
6. In this interlocutory application, the applicant seeks a direction that the tribunal remit the matter to the respondent for reconsideration after carrying out the required consultation of the surveyed farmers pursuant to ss 27 and 27A of the FoI Act. At the hearing the applicant relied on the agency’s obligation to inform certain persons or organisations in accordance with ss 59(3) and 59A(3) of the FoI Act, and did not press ss 27 and 27A.
7. Alternatively, the applicant sought to have the hearing adjourned so as to permit such consultations or notifications to take place (Exhibit A1, paras 10, 14).
8. At the hearing, both parties relied on written submissions and supplemented them with oral submissions. The respondent relied on an affidavit of Karen Schneider, deputy executive director of ABARE, sworn 25 January 2007 (Exhibit R1), which was admitted subject to the applicant’s reservation of the right to cross-examine the deponent at the substantive hearing.
9. Ms Schneider described the survey process and pointed out that ABARE needs a high response rate to survey questionnaires in order to obtain data that are comprehensive enough to permit valid conclusions to be drawn. To encourage participation in these voluntary studies, ABARE has developed guidelines for the confidential handling of information. ABARE undertakes to participants that no information will be released in a way that could identify or compromise the business interests of individual farmers. That assurance is conveyed in a standard letter requesting their participation in the survey (Exhibit R1, annexure C).
10. Ms Schneider deposed that it is difficult to obtain agreement from farm businesses to participate in surveys because of the detailed and sensitive nature of the information sought. Farmers usually agree to participate only after ABARE provides strong assurances of non-disclosure. She thought it likely that if farmers were informed that their responses to the surveys could be disclosed, they would be likely to question the assurances previously given and would be much more reluctant to participate in future surveys.
11. In relation to ss 59 and 59A of the FoI Act, the applicant relied strongly on the decision of Deputy President Forgie in Re Andrews and Australian Research Council [2007] AATA 1026. That decision was delivered only two working days before the hearing of the application. The applicant was commendably informed of it by the respondent, presumably acting in pursuance of the government’s model litigant policy.
12. Mr Robinson submitted that Andrews, reversing some earlier tribunal authority, makes it clear that compliance with the notification provisions of ss 59(3) and 59A(3) is mandatory. As soon as practicable after an application is made to the tribunal for review of an agency decision not to grant access to a document of the relevant class, the agency must take all reasonable steps to inform the person or organisation of the application for review. In determining the scope of the obligation created by the subsection, regard could be had to circumstances affecting the fulfilment of that obligation, but not to circumstances going beyond it and into areas such as whether the person under the obligation would be better served by taking a different course and deferring fulfilment of the obligation. The “reasonable steps” that must be taken “as soon as practicable”, Forgie DP had determined, must be assessed by reference to circumstances affecting the agency’s ability to fulfil that obligation (at paras 66-68):
…
So, for example, considerations relating to whether or not the person, to whom the information relates, can be found would be relevant. So, for example, if it is known that the person is alive but living in a suburb of an Australian city or as a hermit in Mongolia, those circumstances will be relevant in considering what amount to reasonable steps to notify that person (para 68).
…
13. Other considerations were not relevant:
…
Considerations of whether the agency would prefer to defer fulfilment of the obligation for some reason, sound or otherwise, are not relevant. Those considerations do not relate to the fulfilment of the obligation but to the consequences of fulfilment or to the deferral or fulfilment (para 69).
…
14. The clear intention of the legislation was that the obligation was to arise as soon as the preconditions for it came into existence and the tribunal had no power to dispense with compliance with that obligation by reliance on s 33 of the Administrative Appeals Tribunal Act 1975 (the AAT Act) or any other piece of legislation.
15. On behalf of the respondent, Miss Henderson disputed that reasoning, contending that the obligation to notify does not arise until it becomes “practicable” to deal with it. The necessary practicability did not arise until it was clear that exemption claims under other sections of the FoI Act needed to be determined. Andrews had approached the construction of the subsection in an erroneous manner which had led the tribunal to the conclusion that the subsections created an immediate obligation, whereas the language “as soon as practicable” was meant to incorporate an element of flexibility. No argument had been heard in Andrews about the problem of the inutility of farmer evidence in relation to a s 40 (FoI Act) exemption and there had been no evidence of possible detriment resulting from the mere fact of notification, such as was contained in Ms Schneider’s affidavit. Andrews had viewed the postponement of notification as an attempt to defer compliance with a statutory obligation when in fact that was simply a practical way of determining the issue.
16. The respondent relied on certain inaccuracies in a paraphrase of the provisions in para 35 of Andrews as being the source of what the respondent viewed as the tribunal’s erroneous interpretation. But the paragraph was only meant to be a convenient summary and I see no indication that the tribunal was led by it onto an incorrect path of reasoning. I respectfully agree with Forgie DP that no basis can be found in the legislation for adding what amounts to a qualification on the obligation created by the two subsections. Nor can I see any indication that the absence of any evidence of possible detriment flowing from the fact of notification itself would have made any different to the interpretation adopted. On the face of it, the concerns expressed by Ms Schneider are not implausible, but I accept Forgie DP’s conclusion that the legislation allows the tribunal no discretion in that regard.
17. The applicant sought to the have the tribunal remit the matter to the respondent for reconsideration of its decision at this stage. It pointed out that s 42D of the AAT Act gives the tribunal the power to do so at any stage of a proceeding for review of a decision. Mr Robinson argued that remittal would be an efficient way of dealing with the application because some or all of the surveyed farmers might agree to the release of the relevant documents. Their views would then be known and the department might decide to release further documents. The applicant might well be satisfied with that result if a sufficient number of surveys were released.
18. He drew attention to a decision of the New South Wales Administrative Decisions Tribunal (ADT), Humane Society International Inc v National Parks and Wildlife Service [2000] NSWADT 133 in which that tribunal (constituted by Mr Robinson himself, as it happened) remitted a decision to the agency, partly because it had not notified all the persons potentially affected by the decision and the review of it by the ADT (para 7). The reasons do not make it clear, however, whether the respondent was under a statutory obligation to notify, or at what point that obligation arose.
19. Miss Henderson submitted that the effect of the reasoning in Andrews was to preclude the remittal sought by the applicant. Be that as it may, I am not persuaded that remitting the matter to the agency before the application has been determined on the merits is the appropriate course in this case. In The Company and FCT (1998) 50 Admin Review 37 (cited in Dennis Pearce, Administrative Appeals Tribunal (1st edition, 2003) pg 129) the AAT was urged to remit a review application at the directions hearing stage. The tribunal declined to do so, saying that the power to remit should be exercised at that early stage of the proceedings only when it was shown that the reasons for decision were a sham or it was clear that the decision-maker had not applied his or her mind to the matter in question.
20. No such grounds have been made out in the present case and to remit at this stage might savour of prejudging the substantive issue. Even without remittal, there is nothing to prevent the matter from being dealt with in a flexible and efficient way. The respondent is quite at liberty to decide to release further documents in light of any responses it receives to notifications under ss 59(3) or 59A(3).
21. The respondent’s preferred courses of action were that the tribunal should either adjourn the matter to permit the required notifications to be made, or hear the respondent’s exemption claim under s 40(1)(d) of the FoI Act first. That claim, Miss Henderson submitted, related to all of the documents in issue and it does not depend on the views of particular farmers, but on the department’s need for farmer co-operation in the future. Only the public interest in disclosure would be relevant, and s 40 does not require notification. In Re Swiss Aluminium Australia Limited and Commissioner of Taxation (1985) 8 ALD 159 the tribunal, Beaumont J presiding, made it clear that it was permissible to argue and determine one particular basis for exemption separately.
22. In reply, the applicant submitted that pursuant to Andrews, it was not possible to bifurcate the hearing of the application and the tribunal must either remit the matter under s 42D of the AAT Act or defer the whole application until notice had been given to all the affected parties.
23. While Andrews makes it clear that the tribunal cannot make procedural arrangements that will have the effect of deferring the respondent’s notification obligations under ss 59 or 59A of the FoI Act, I do not interpret the reasons in that case as precluding the separate hearing of particular exemption claims once the required notices have been given. Indeed, the reasons appear to leave open that very possibility (at para 73). It would, however, in my view be premature at this stage to direct that the s 40 claim be heard separately. It is too early to know what may be the consequences of seeking the views of farmers in the required way. New issues and considerations could emerge as a result of that exercise.
24. I therefore adjourn the application generally, without setting a date for a new directions hearing, as there is no evidence as to how long the notification process is likely to take. Each party, or both parties, are to have liberty to apply for a further directions hearing.
I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Professor G Walker, Deputy President
Signed: BKS (Associate to DP Walker)
Date/s of Hearing 30 January 2007
Date of Decision 7 February 2007
Counsel for the Applicant Mr Mark RobinsonSolicitor for the Applicant Mr Ian Ratcliff, Environmental Defender’s Office (NSW) Ltd
Counsel for the Respondent Miss Rhonda Henderson
Solicitor for the Respondent Mr David Smith, Australian Government Solicitor
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